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More Back-and-Forth on Proposed Jury Instructions/Verdict Forms in SCO v. Novell
Tuesday, March 09 2010 @ 12:30 PM EST

The parties are still going back and forth over pre-trial issues, specifically over the jury instructions and the verdict form. We may see even more on this, because jury instruction and the verdict form come at the very end, so there is still time to try to get it just right. Not that either side will be entirely happy with the result. SCO, of course, wants the last word.

But in truth, the wording of these documents does matter a lot, so it's typical to have quite a lot of discussion on exactly how to phrase things. After all, when the jury is deciding, they will be reading that wording, and going over it with a fine-tooth comb on any issues where they don't immediately agree, most likely. You've seen what a mess the unclear wording in the appeals court ruling created, so imagine if the jury were to be confused into thinking they *have* to rule a certain way if they actually don't, based on a misreading of an unclear phrase.

I thought it was funny yesterday that the parties couldn't come up with a proposed introduction to give the judge to read, so he wrote his own, and when they handed up one they'd finally been able to agree on, he decided to just use his own anyway. It was too late. I expect that incident was inspirational to both parties. And as you'll see in a minute, they are really trying on the jury instructions, with Novell putting the model instructions and both parties' competing phrasing all in one document, so the judge has it all in one place. And then Novell says SCO wants to file its own also.

The latest filings:

03/08/2010 - 784 - REPLY BRIEF in Support of SCO's Objections to Novell's Proposed Jury Instructions filed by Plaintiff SCO Group. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Hatch, Brent) (Entered: 03/08/2010)

03/08/2010 - 785 - REPLY BRIEF in Support of SCO's Objections to Novell's Proposed Verdict Form filed by Plaintiff SCO Group. (Hatch, Brent) (Entered: 03/08/2010)

03/08/2010 - 786 - REPLY BRIEF re 772 Objections to Novell's Proposed Jury Instructions filed by Defendant Novell, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Brennan, Sterling) (Entered: 03/09/2010)

03/09/2010 - 787 - Proposed Jury Instructions by Novell, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Brennan, Sterling) (Entered: 03/09/2010)

If you read the introduction to #787, Novell's Supplemental Submission of Model-Based Jury Instructions, you'll understand what is happening:

INTRODUCTION

Together herewith, Novell is also filing its reply in support of its proposed jury instructions. It is expected that SCO will also be filing a reply in support of its instructions. And each party has previously filed objections to the otherís proposed instructions.

The purpose of this submission is to mitigate the burdens imposed on the Court by the partiesí other instruction-related submissions in three ways: first, by collecting Novellís and SCOís respective proposed instructions into a single document, for ease of reference and juxtaposition; second, by also collecting pertinent model instructions into the same document, and juxtaposing them with the partisan proposals of both parties; and third, by offering modelbased alternatives to both SCOís and Novellís own previous proposals.

With just three exceptions, each major section below has five parts: Novellís proposed instruction(s) on a given topic, SCOís corresponding instruction(s), applicable model instruction(s), a proposed model-based alternative to the partiesí previously-proposed instructions, and a brief explanation of any variations in the proposed alternative from the model(s). 1 In almost every case, the model-based alternative either is drawn verbatim and without alteration from the models; or is derived by editing the model only enough to either make it reciprocal or adapt it from the personal defamation to the slander of title context.

And SCO *still* wanted to file its own on top of all this.

: D

The other filings are reply briefs in support of their own positions, answering the other side's objections to verdict form phrasing. I haven't read them yet, so that's just going by the titles.

What happened yesterday with the introduction sends the parties a message about the judge's desire to have timely filed joint proposals when he asks for them. This is an "or else" judge, I think we could say. SCOfolk got used to Judge Dale Kimball's more patient style.

Both styles work in different ways. The advantage of Judge Kimball's style is that complexities are more fully grasped prior to a ruling. But it takes a long time. Judge Ted Stewart says what he means and means what he says, which forces the buggy up the road, whether the old nag feels it is ready to go or not. But the good thing I've noticed about Judge Stewart also is that if he sees he's wrong, he doesn't mind changing his ruling. So that is the fail safe, and it's also why I think we will see more discussion on some issues, even some already decided.


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